Graham Allison on Thucydides Trap - The South China Morning Post
My Interview With The South China Morning Post |
The South China Morning Post interviewed me a couple of weeks ago after I returned from Beijing. Overall, it reflects my current thinking about how the U.S. is meeting the China challenge.
If you have reactions, we will be interested to receive them. Graham Allison |
Ling Li (@lingli_vienna), lecturer at the University of Vienna, joined us on Monday, November 28 to discuss:
The origins and evolution of Covid Zero;
Different paths the CCP could take to cracking down;
What the protests tell us about modern China.
Ling Li: When talking about the historical development of the Covid policy, the key point to remember is when the rest of the world had gradually opened up in the summer, China still insisted on the Zero Covid policy. Inspired by success in the earlier phase of the pandemic — the phase after the initial breakout in 2020 in Wuhan, mainly in the second half of 2020 and most of 2021 — this policy was advertised by the party as the secret of China's victorious war against the pandemic, which could be delivered only in China thanks to its unique political system and leadership.
This past summer, there were two interpretations of the future development of the policy. [The first was that] the policy was to stay forever as a permanent method for social control. The second [was] that the policy had to be kept in place because of the 20th Party Congress. Zero Covid policy would help to eliminate any nasty surprises that would otherwise ruin the celebratory mood and tarnish the spectacles of the Congress. Just imagine what an embarrassment it would have been if what happened yesterday had happened during the Party Congress!
Before the 20th Party Congress, both interpretations looked possible to me. But soon after the Congress, the newly elected Politburo Standing Committee (PSC) authorized a new policy: “20 Measures to Optimize the Covid Control Policy”, which contains a number of measures that are aimed at easing up the lockdown: lifting the citywide 48-hour mandatory PCR test, free access to grocery stores in some places without scanning your code, and easing up international travels. Obviously, the 20 measures are far from being entirely opened up. It has a heavy emphasis on partial lockdown measures, which is natural because any sensible transition is expected to be gradual. But it has, nevertheless, shown that the Party has not locked itself in the lockdown policy just for the convenience of political control. It also shows that the Party is willing to open up when the condition is right.
The number of infection cases skyrocketed in the last few weeks and the policy was quickly reversed, which makes me believe that the Party has a genuine concern that an immature open-up will make the mortality rate unbearable. This is a difficult phase that many countries have experienced, and the fact that it is difficult does not mean it is not viable or has no recourse. Nor does it mean that one can survive the crisis simply by hiding out and continuing with the lockdown. The two key issues in overcoming or alleviating the pain of the opening-up process are vaccination and the increase of medical treatment capacity. From the reports that I have access to at present, no significant improvement has been made in this direction. There still seems to be no result of a domestically developed mRNA vaccine. In contrast, considerable resources have been continuously poured in to enforce the lockdown measures, to reinstate the PCR test, and now to crack down on the protests and maintain social stability.
This makes me wonder whether the decision-makers, at both policymaking and policy-implementation levels, have been captured by the business interests of the Covid-related industries, who seem to have the most to gain from a prolonged lockdown policy. These industries include PCR testing, constructors and operators for makeshift hospitals, and other auxiliary services. These groups seem to gain most from [the] Zero Covid policy given the sheer size of the gigantic demands for their services.
Who owns these companies? What’s their relationship with the licensing authority? Anything smells like corruption?
Jordan Schneider: So what's more intolerable to the Party? Seeing a million Chinese people die over the course of two months, or continued street protests?
Let's talk a little bit about the relationship between Covid Zero and the protests. Expectations were raised after the Party Congress, and then continued lockdowns in the face of spiking numbers gave a lot of folks a sense of hopelessness — that this was, in fact, never going to end. Then, over the past few days, we saw the fire in Xinjiang, followed by protests nationwide. How do you think the street actions have potentially changed the calculus of decision-makers in Beijing?
Ling Li: I assume it's a still ongoing process, and I hope the new PSC members in Beijing are coming together and trying to get out of the crisis in some way.
One reason for the PSC to meet is in the face of [a] national crisis, and the protests we're seeing right now certainly qualify. There's so much resemblance and parallel that we can draw [between] the protests now and 1989, when protests started to spread across the nation — starting from the universities, and then [spilling] over to other social sectors. There will be a concern of fear that history will repeat itself, but I doubt it will. In 1989, if my memory serves correctly, before the Army was brought in for the crackdown the local police did not involve themselves in repressing the protesters.
30 years later, the Chinese police bureaus have been trained for social stability maintenance [in order] to deal with these kinds of situations. They're more responsive, and they have more strategies [and] tactics to disperse the crowds, repress the crackdown, and prevent and deescalate the situation very quickly. The process has started already today [Monday, November 28].
Jordan Schneider: I think you're right. My sense is over the weekend, the police system was caught a little bit off-guard. What you're seeing on Monday night China time is massive police presence that has seemingly made it hard, if not impossible, to gather like they did on Friday, Saturday, and Sunday.
Ling Li: The protest spread overnight, or over a couple of days, in so many different places, which is unseen for the last 10 or 20 years. One of the reasons that it could happen is a weakening of surveillance control, maybe because of the economic slowdown. The state does not have such a big amount of resources to hire all these workers to conduct online activity reviews and surveillance as efficiently and effectively as they did before.
Jordan Schneider: There's this narrative in the Western media that China's internet ecosystem is fully controlled by the Party, but the amount of content that got shared millions of times on WeChat, Douyin, Douban, Weibo, and whatnot was truly astounding to see over the past few days. If you're not going to take more extreme measures, like shutting down WeChat Moments [or] pulling the plug on the internet, and you're still allowing people to post in real time, ultimately you are going to run into a human-capital limit on the censor side.
Do you think the online and in-person protests over the past few days caused Party leadership to question any assumptions they had?
Ling Li: There's this debate [about the extent to which] Xi Jinping is objectively informed of what's going on in his country. I think this question should be further subdivided. For example, for the Urumqi fire, I'm sure he's going to be informed that something happened and a number of people got killed in the accident.
Is he going to be briefed as if the accident was caused because the residents there failed to behave themselves properly, as an official announcement has said? Or is it going to be explained as if the excessiveness of the lockdown measures prevented people from escaping?
Jordan Schneider: It's not just the information; it's also the mindset and frame. I can't imagine a world in which he sees protests on the street as something to be responded to softly or in a conciliatory manner.
Ling Li: I think the repression will have to happen. We don't know the severity of the repression yet, but [protesters] will certainly be demobilized for now to prevent the continued spread of the protest in other parts of the country.
But what are they going to do with all those leading students, especially the organizers of the protest? That's another issue. He could treat them with more leniency through education — 以说服教育为主 [“mainly through verbal persuasion as education”]. The worst case scenario is to prosecute them.
Jordan Schneider: What are the pros and cons of “let's just sweep this under the rug and not make a big deal of it”, versus “let's make an example out of some people in an aggressively public manner”?
Ling Li: I believe he will make a few exemplary cases to deter further, or similar, actions from other students, or other people who have the inclination to go to the streets and air their grievances. But I don't think it's a wise decision or a good time — it’s probably never a good time — for large-scale repression, which means [arresting] a lot of people and [sending] them through the prosecution procedure, as we have seen in Hong Kong.
It's not that I believe that Hong Kong protestors should be treated more harshly — certainly not. But I have an intuition that he might see domestic politics differently from politics in Hong Kong, which is further away. Whatever he's doing in mainland China might be multiplied. Its multiplication effect may lead to some outcomes that he does not want to see or will be more difficult to control.
Jordan Schneider: So the downside of more aggressive repression is scarier when you're talking about arresting students in Beijing, [compared to] arresting students in Hong Kong? That may be true objectively, but that may not be something that resonates in Zhongnanhai. Or maybe not? I don’t know.
Ling Li: There certainly will be hardliners, like what happened in 1989. But we don't know who belongs to which camp: especially with this newly elected Politburo and PSC, they have a lot of new members whose personalities and political stances we are yet to learn.
Jordan Schneider: There's this narrative that Chinese people are docile and have been ruled by autocracy for thousands of years, and you can't expect Chinese people to be particularly excited about civil rights. All things considered, since 1989 things have been relatively quiet on the mass political activism front. Has what you've seen over the past few days caused you to question any of your assumptions or challenge stereotypes? How much should folks update on the potential future of China given what we've seen over the past few days?
Ling Li: If you think rationally, the strength between the protestors and the government that you are protesting against is disproportionate.
But emotion is contagious. When you see a larger crowd of people who go to the street, you may be affected by it very quickly without having to process rationally. That's why a critical crisis may trigger this emotion: in the right environment where information can transmit more freely, something like this might happen. If the Urumqi fire is the trigger, and the relaxed surveillance measures on the internet and long-time repression by the government because of the lockdown policy for the past three years will be the catalyst. Add it together for the perfect storm, which is what we saw yesterday.
Jordan Schneider: It's such a deep irony: the “greatest” manifestation of the CCP in controlling the spread, when almost every other country in the world couldn't, was because the Party is so close to people and has the ability to control down to very local levels and manifest state power in such an in-your-face way.
Ling Li: We live in our own echo chambers. But there's also a considerable percentage of the population in China who do not support the protests for whatever reason. There's also a segment of society in privileged neighborhoods who have not suffered that much from lockdown measures. Certain sectors of the population even benefit from the lockdown measures, and they do not share the same level of sympathy with the protestors as many others do.
Jordan Schneider: How do you think the protests will impact the trajectory of Covid Zero?
Ling Li: Students and people are making speeches and articulating why they are doing what they are doing. It's very difficult for Xi to claim that he didn't get the right message. That information should be able to flow to the top decision-maker without much distortion.
If that is the case, I think he has to take it into consideration. Because they have already relaxed the lockdown policy at the beginning of November, that shows there's a certain flexibility among the top decision makers in the new PSC to start to prepare the population for the easing-up.
Jordan Schneider: Is there anything we can say now about what, if anything, these protests do for China's relations with, and standing in, the world? I think a lot of countries are basing their relationship with China on the expectation that China is going to inevitably grow stronger, bigger, richer, and more powerful. Maybe one thesis is that as China's growth is slowing and societal fissures [emerge], China doesn't seem quite as scary anymore if you're sitting in Delhi or Tokyo.
There's also a timeline where domestic disturbances become so overwhelming that Xi decides that he wants to escalate something in Taiwan as a way to distract folks, or another border potentially. This is very aggressive, irresponsible speculation on my part, but I do think these sorts of things resonate globally in one way or another. Another way this could play out is if you do see an aggressive crackdown, European countries who are still on the fence about just how they want to chart out their relationship with China going forward might ask some harder questions.
Ling Li: It certainly will impact foreign relations between China and the rest of the world, depending on what the party is going to do. I don't think the German government or industries will change their strategies with China because of the protest, but it will have an impact depending on what the Party is going to do afterwards. If there's massive repression, like what happened in ‘89, that certainly is not going to be conducive to a conciliatory approach between China and the rest of the world in foreign relations.
The party has a choice to make and it will be a very difficult one. On the one hand, you have to play tough in front of the challenges. Otherwise, it would set a bad example: it will induce more protests in the future, which is something the Party does not want. But if you play tough, then it has its consequences as well, directly and indirectly.
It's a pity that we’ve come to this point because it [didn’t] have to be this way. I'm no medical expert, but I have been told over and over again that winter is a good time for the virus, but a bad time for easing up.
If they had started importing mRNA vaccines [then], they would have vaccinated the more vulnerable population for one dose at least by now.
Jordan Schneider: They absolutely did have choices and different leadership could have made different decisions, particularly over the course of late 2021 and 2022.
Ling Li: I was surprised by how quickly the protests spread, because when you have been observing the whole situation for three years, you would have thought that society is dead and nothing would ever happen. Suddenly, without any signaling or alarm, things happen.
I have more questions than answers. For example, how did the students organize? Protests in Hong Kong and other places were decentralized — there's no central leadership figure of the movement — but you have to have someone to decide where to meet, when, and what slogans we’re going to have, right? How did they achieve that, and how come the police did not capture that information before? Before the pandemic, the Party had been so successful in social control because they could detect problems before problems escalated into large-scale protest. It seems the police sometimes know more about the gathering than the people who are organizing the gathering, so that [protesters] can be blocked at home and prevented from taking public transport. This time, it seems the police were totally [caught] off guard. How did that happen? Through what platform did the students organize?
Jordan Schneider: Clearly, this isn't Martin Luther King running around slowly building up a movement church by church in the fifties and sixties. But these kids today in China have the internet. There's enough communication that has been able to happen on WeChat and other platforms that even if you don't have Telegram or Signal, you're able to really make your voice heard.
You mobilize people who are all very frustrated by just walking around the dorms and saying, “Hey, let's meet here now.” Virality on the internet, overwhelming the sensors, definitely helped bring more people to actions that started in Shanghai, Beijing, and other cities across the country. But is this something that can possibly be sustained once you get past that initial phase of surprise by the government, and the security state really ramps up? The tools available to the mainland China police state are far different from what you see in pretty much every other country in the world that has tried to repress protest, which is ultimately why I'm pretty skeptical of the idea that this is going to metastasize and sustain in the way a protest in Iran or Hong Kong did. But there's an outside chance that I'm wrong and this leads us into a very dangerous place.
Ling Li: Yes, I totally agree. There's one thing I want to add: millennials grew up in an environment where they watched American talk shows, American television, and Hollywood films. On the one hand, they continued to receive brainwashing political education from school. But the naughty in the classroom received different kinds of entertainment and information, which are heavily influenced by the Western world. That, probably, has also contributed to a different value system compared to the older generation.
One last thing I want to talk about is the legal development over the last 20 or 30 years. There are still significant problems [with] restrictions on judicial independence, judicial autonomy, and the autonomy of the legislature, so it's still very difficult to challenge governmental actions in China, let alone the Party. However, legal education in the last 20 or 30 years has injected a common awareness of rights and limitations of power.
In many instances, they succeeded.
Outro music is a clip of a car playing “Do You Hear the People Sing” from Les Misérables in Hangzhou, near a site where a protest was allegedly planned but quashed by heavy police presence. As the song plays, an announcement in the background drones, “Do not loiter, do not gather, do not loiter, do not gather…”
Henry Kissinger ‘We are now living in a totally new era’
Henry Kissinger Cold war strategist discusses Russia, the Ukraine war and China at the FTWeekend Festival in Washington Henry Kissinger says there is insufficient discussion about the risk of nuclear weapons
Interview conducted by Edward Luce in Washington
This is the edited transcript of a discussion between Henry Kissinger, former US secretary of state and national security adviser, and Edward Luce, Financial Times US national editor, which took place on May 7 in Washington.
Financial Times, May 10, 2022
Financial Times: Earlier this year, we commemorated the 50th anniversary of the Nixon visit to China, the Shanghai communique. You, of course, were the organiser, the orchestrator of this Sino-US agreement. And it was a major shift in the cold war: you split China from Russia. It feels like we’ve gone 180 degrees. And now Russia and China are back in a very tight relationship. My opening question to you is: are we in a new cold war with China?
Henry Kissinger: At the time we opened to China, Russia was the principal enemy — but our relations with China were about as bad as they could be. Our view in opening to China was that it was unwise, when you have two enemies, to treat them exactly alike. What produced the opening were tensions that developed autonomously between Russia and China. [Former Soviet Union head of state Leonid] Brezhnev could not conceive that China and the United States could get together. But Mao, despite all his ideological hostility, was ready to begin conversations. In principle, the [Sino-Russian] alliance is against vested interests, it’s now established. But it does not look to me as if it is an intrinsically permanent relationship.
FT: I take it that it would be in America’s geopolitical interest to encourage more distance between Russia and China. Is this wrong?
HK: The geopolitical situation globally will undergo significant changes after the Ukraine war is over. And it is not natural for China and Russia to have identical interests on all foreseeable problems. I don’t think we can generate possible disagreements but I think circumstances will. After the Ukraine war, Russia will have to reassess its relationship to Europe at a minimum and its general attitude towards Nato. I think it is unwise to take an adversarial position to two adversaries in a way that drives them together, and once we take aboard this principle in our relationships with Europe and in our internal discussions, I think history will provide opportunities in which we can apply the differential approach. That doesn’t mean that either of them will become intimate friends of the west, it only means that on specific issues as they arise we leave open the option of having a different approach. In the period ahead of us, we should not lump Russia and China together as an integral element.
FT: The Biden administration is framing its grand geopolitical challenge as being democracy versus autocracy. I’m picking up an implicit hint that it's the wrong framing?
HK: We have to be conscious of the differences of ideology and of interpretation that exists. We should use this consciousness to apply it in our own analysis of the importance of issues as they arise, rather than make it the principal issue of confrontation, unless we are prepared to make regime change the principal goal of our policy. I think given the evolution of technology, and the enormous destructiveness of weapons that now exist, [seeking regime change] may be imposed on us by the hostility of others, but we should avoid generating it with our own attitudes.
FT: You have probably more experience than any person alive of how to manage a stand-off between two nuclear-armed superpowers. But today’s nuclear language, which is coming thick and fast from [Russian president Vladimir] Putin, from people around him, where do you put that in terms of the threat we are facing today?
HK: We are now [faced with] with technologies where the rapidity of exchange, the subtlety of the inventions, can produce levels of catastrophe that were not even imaginable. And the strange aspect of the present situation is that the weapons are multiplying on both sides and their sophistication is increasing every year. But there’s almost no discussion internationally about what would happen if the weapons actually became used. My appeal in general, on whatever side you are, is to understand that we are now living in a totally new era, and we have gotten away with neglecting that aspect. But as technology spreads around the world, as it does inherently, diplomacy and war will need a different content and that will be a challenge.
FT: You’ve met Putin 20 to 25 times. The Russian military nuclear doctrine is they will respond with nuclear weapons if they feel that the regime is under existential threat. Where do you think Putin’s red line is in this situation?
HK: I have met Putin as a student of international affairs about once a year for a period of maybe 15 years for purely academic strategic discussions. I thought his basic convictions were a kind of mystic faith in Russian history . . . and that he felt offended, in that sense, not by anything we did particularly at first, but by this huge gap that opened up with Europe and the east. He was offended and threatened because Russia was threatened by the absorption of this whole area into Nato. This does not excuse and I would not have predicted an attack of the magnitude of taking over a recognised country. I think he miscalculated the situation he faced internationally and he obviously miscalculated Russia’s capabilities to sustain such a major enterprise — and when the time for settlement comes all need to take that into consideration, that we are not going back to the previous relationship but to a position for Russia that will be different because of this — and not because we demand it but because they produced it.
FT: Do you think Putin’s getting good information and if he isn’t what further miscalculations should we be preparing for?
HK: In all these crises, one has to try to understand what the inner red line is for the opposite number . . . The obvious question is how long will this escalation continue and how much scope is there for further escalation? Or has he reached the limit of his capability, and he has to decide at what point escalating the war will strain his society to a point that will limit its fitness to conduct international policy as a great power in the future. I have no judgment when he comes to that point. When that point is reached will he escalate by moving into a category of weapons that in 70 years of their existence have never been used? If that line is crossed, that will be an extraordinarily significant event. Because we have not gone through globally what the next dividing lines would be. One thing we could not do in my opinion is just accept it.
FT: You’ve met [Chinese president] Xi Jinping many times and his predecessors — you know China well. What lessons is China drawing from this?
HK: I would suspect that any Chinese leader now would be reflecting on how to avoid getting into the situation in which Putin got himself into, and how to be in a position where in any crisis that might arise, they would not have a major part of the world turned against them.
Transcribed by James Politi in Washington
Interview com a prof. Oona Hathaway , autora de um livro sobre o Pacto Briand-Kellog muito interessante.
The “Shadow” of International Law
Can accountability for Russian war crimes exist without American support?
The New Yorker, April 7, 2022
“You’re seeing this reaction of the international community,” Oona Hathaway says, “because everybody realizes that their own safety and security is at risk if Ukraine falls.”
As Russian forces have pulled back from Kyiv and its surrounding suburbs, a disturbing series of images have appeared, which seem to show the execution of civilians. In Bucha, bodies have been found with hands tied and gunshot wounds to the head. A report published by Human Rights Watch, on Sunday, documented sexual violence and alleged killings by Russian troops in other parts of the country. Earlier this week, President Biden called for the Russian President, Vladimir Putin, to face a trial for war crimes. (Satellite imagery revealed that the dead bodies in Bucha had been present for weeks, casting doubt on Russian claims that they had been placed there after Russian forces departed.) On Tuesday, the Ukrainian President, Volodymyr Zelensky, addressed the United Nations Security Council, and asked, “Are you ready to close the U.N.? Do you think the time of international law is gone? If the answer is no, then you need to act immediately.” (Later in the week, the New York Times posted a still frame from a video that appeared to show Ukrainian troops executing captured Russian combatants.)
To talk through what, if any, consequences the Russian leadership could face for these actions, I recently spoke by phone with Oona Hathaway, a professor at Yale Law School and the director of the school’s Center for Global Legal Challenges and the co-author, with Scott J. Shapiro, of the book “The Internationalists” She also serves on a committee that offers guidance to the State Department on international law. During our conversation, which has been edited for length and clarity, we discussed the different mechanisms that could be used to bring members of the Russian military to justice, how American actions have undermined the prospects for international accountability, and how international law might change after the Ukraine conflict.
What does it mean, in practice, for a big and powerful country to commit war crimes in 2022?
Well, it means that the international legal order is really under serious stress. This is, of course, not the first time that a major country has committed war crimes, even in recent years. We’ve seen war crimes taking place, for instance, in Syria, for much of the last several years. But what’s distinctive about this current moment is that we haven’t seen a fight between a major global power (here, Russia) and another state (here, Ukraine) in the last couple of decades, where the rules of the Geneva Conventions, the vast rules of international humanitarian law, are being broken on a massive scale.
We all have an idea of what war crimes are, but what is the underlying legal framework here? Is it just the Geneva Conventions, or something else?
The rules are not limited simply to the Geneva Conventions. It could also include customary international law that supplements the treaty rules in the Geneva Conventions. International humanitarian law creates a kind of foundational framework that we look to when we’re thinking about war crimes, and war crimes are any serious violation of international humanitarian law. So we look to: What does international humanitarian law provide? What does it require? What does it allow states to do? What does it prohibit states from doing? And then is there any significant violation of those rules? And, if there is, that can be a war crime.
And, in terms of enforcement mechanisms, it seems like there is the International Criminal Court, but beyond that?
There are two categories of accountability mechanisms. There are domestic courts, and there are international courts. And, generally speaking, when war crimes are committed it’s often the domestic courts that take the lead in addressing the problem. So you may remember that there were some courts-martial of U.S. soldiers for war crimes, and a few of them were pardoned by President Trump after having been convicted. And actually in Ukraine we see that the prosecutor general of the country has already opened more than two thousand investigations into possible war crimes taking place in Ukraine, and is likely to start prosecuting Russian soldiers—particularly soldiers who are currently being held as prisoners of war and may have participated in some of those war crimes and therefore can be subject to prosecution for violating international humanitarian law.
So it would be prosecutions on the domestic level for violations of international law?
Exactly. Almost every country in the world that is party to the Geneva Conventions has its own domestic statute that allows for the criminal prosecution of war crimes. So the United States has its own War Crimes Act that allows prosecution of war crimes here in the United States. And Ukraine has war crimes as part of its domestic criminal law. But that is done in the shadow of the international law, and the Geneva Conventions in fact require states that are party to the conventions to to be able to criminally prosecute violations of the conventions. So every state is actually required to have a mechanism for domestic prosecutions of war crimes.
And what happens if America or Russia just decides not to follow the Geneva Conventions? There is no enforcement mechanism for that, correct?
Yeah, other than all the enforcement mechanisms we’re seeing the world try to use against Russia. So sanctions. And, if any of those who are suspected of crimes were to travel outside Russia, they potentially could be subject to prosecution for war crimes. So there are some possible mechanisms.
Yes, this happened with Pinochet.
Yeah, and that’s an issue that can come up for a number of these folks. And then they’re also subject to prosecution in Ukraine. And Ukraine actually has a system in place for not only indicting people in absentia but potentially even trying them, although I’m not sure that that’s something the international community is going to be enthusiastic about because it’s considered to be not entirely kosher with human-rights norms. But if they were to travel to other states that have war-crimes statutes . . .
Why isn’t it considered kosher?
The idea of trying someone who isn’t present brings up concerns that he or she is not able to properly defend themselves.
Can you talk a little bit about the International Criminal Court, which Russia is not party to? How does it function?
I think the I.C.C. has a lot of potential to be useful here. You are absolutely right that neither Russia nor Ukraine is a party to the Rome Statute, which is the treaty that created the I.C.C. But back in 2014 Ukraine agreed to submit events taking place in Ukraine to the jurisdiction of the International Criminal Court, and then it renewed that and expanded it. And that submission remains in place. And so, even though Ukraine is not party to the International Criminal Court, it has submitted to the jurisdiction of the International Criminal Court, which basically means that if there are crimes committed in Ukraine that are within the scope of the crimes that can be prosecuted in the International Criminal Court, then the I.C.C. can open an investigation and in fact move forward with the prosecution, and that has happened.
So an I.C.C. prosecutor announced that he was opening an investigation. And he also announced that he’s received forty-one state referrals, which essentially indicates that the state strongly supports moving forward with an investigation. Some states have offered additional funding and assistance to the prosecutor in investigating war crimes and crimes against humanity. And now we’re hearing reports potentially of genocidal acts, as well, in Ukraine. So that is the international mechanism that is already at work with doing some of the evidence collection and doing some investigations that would be necessary in order to move forward with prosecution of these war crimes.
America has played a huge role in undermining the I.C.C. The Bush Administration would not coöperate with it. The Trump Administration sanctioned people at the I.C.C. and said that we would never send people there for trial. Beyond the morality of this, what about the practical impact? Is the I.C.C. really going to function without meaningful American support?
So it has been functioning even without strong U.S. support. It’s not perfect, but it has managed to move forward with some significant prosecutions, some of which have been with U.S. support. It’s important to note that the United States supported the referral of the situation in Sudan to the International Criminal Court, for instance. [The U.S. declined to formally support a referral, but didn’t object.]
I was referring to referrals of our own citizens.
Oh, yes, absolutely. The United States has had a very fraught relationship with the International Criminal Court from the beginning of the Bush Administration, which was shortly after the Clinton Administration signed the Rome Statute. Bush came in, and he tried to unsign the Rome Statute and then proceeded to go around the world telling countries that if they didn’t sign an agreement exempting the U.S. from the jurisdiction of the International Criminal Court, for crimes committed on their soil, the U.S. would withdraw foreign aid from them.
So, from the beginning, the U.S. has had a pretty contentious relationship with the I.C.C. An investigation into possible war crimes in Afghanistan was the latest episode. President Trump threatened sanctions against judges and the prosecutor of the International Criminal Court and lawyers who were participating in assisting in the Afghan investigation.
The relationship has been interleaved with moments of attempted coöperation, though. The U.S. did accede to referring the situation in Sudan to the International Criminal Court. And during the Obama Administration there was an effort at some level of coöperation between the International Criminal Court and the U.S. Administration. But this is potentially a turning point in the relationship between the U.S. and the I.C.C., because what’s become clear is that it’s very hard to get accountability for Russia in any other way. And the International Criminal Court is the best-positioned, most legitimate institution with the capacity that’s been built up to actually investigate and prosecute these crimes. And the United States, I think, has signalled an openness to allowing the International Criminal Court to play this role, and perhaps could even support it playing that role. There was an announcement by Secretary of State Tony Blinken that the U.S. not only believed that there were war crimes being committed by Russia but was committed to supporting efforts to bring those responsible to account. And, while the I.C.C. wasn’t specifically mentioned, that was in the shadow of the moment when I.C.C. was beginning its investigation.
It just seems like the United States will never want a court with as much teeth as it could have because it could mean accountability for Americans, which I imagine even a Democratic Administration does not want. Do you think that is incorrect?
Well, I’d like to think that is incorrect. The answer to that critique is, well, if the U.S. doesn’t engage in actions that might fall within the jurisdiction of the International Criminal Court, then it doesn’t have a problem. So, you know, if you don’t commit war crimes, genocide, crimes against humanity, then you’re not going to be subject to the jurisdiction of the International Criminal Court. And, with the International Criminal Court,its jurisdiction is limited—it’s important to remember. So it’s limited to having jurisdiction over state parties to the I.C.C., or where crimes have been committed on the territory of the state party. So the reason that the situation in Afghanistan fell within the jurisdiction of the International Criminal Court was because the United States was alleged to have committed a crime on the territory of Afghanistan. Afghanistan is a party to the I.C.C.
But do I think the U.S. is ever going to join the Rome Statute? Certainly not anytime soon. Maybe never. But could the U.S. find a way to get comfortable with the idea of a robust International Criminal Court to investigate these major international crimes? I think it might be able to. The way the International Criminal Court is structured is basically to say: not only does it have these limits on its jurisdiction, which are pretty significant, but it also provides an out for states that are willing to investigate the situation themselves in a serious way, or prosecute potential crimes in a serious way. That falls outside of the jurisdiction of the International Criminal Court, because the I.C.C. has what’s called complementarity provisions, which basically mean that it doesn’t investigate a situation if a state has adequately dealt with it itself.
Yes. I just wonder whether the dissonance would be too great if America was really putting forward the idea of the importance of the court but not fully participating itself.
I think there are different kinds of participation. There is participation as a member of the court, and then there is participation supporting the work of the court by providing evidence and information the U.S. has unique access to, or by helping to apprehend those who have been indicted by the court. Would there be hypocrisy there? I mean, I think there would be an argument many would make that the U.S. should submit itself to the I.C.C. jurisdiction. Again, I don’t think that that’s ever going to be successful. But I think it would be welcomed by members of the court if the U.S. was willing to shift from animosity and trying to tear down the court to coöperative engagement, even if it’s not willing to fully submit itself to the jurisdiction of the court.
Or coöperative engagement about American allies.
Absolutely. There is a way in which we are seeing an evolution where more and more states are willing to exercise universal jurisdiction over these crimes. So even in Europe you see a number of prosecutions for crimes that have been committed not in the jurisdiction of the state that’s holding the trial but outside of that state. So Germany, for instance, recently convicted a Syrian military officer for crimes committed in the course of the Syrian war, and those were not committed in Germany, obviously. And a number of European states have similar statutes. And it could be the case that the U.S. would see that, look, with this rise of universal-jurisdiction statutes in various states, the idea of evading responsibility if there are serious allegations of a significant international crime is not very realistic. And having a host of domestic courts with different kinds of—maybe not particularly adequate—due-process protections may be worse than having a functioning, effective I.C.C. So it may be one of the things where there’s no evading some level of responsibility going forward.
What hope do you have about whether this war and the response to it could end up strengthening international law?
I want to acknowledge the fact that there have been major war crimes committed in the last many years, and Syria is the most obvious case where I think we need to engage in a little bit of introspection about why it is that all this machinery of the international system is coming into play now when we saw so little of it coming into play in the Syrian situation. And part of that was just structurally that Syria was not participating in an effort to bring itself to justice. So, you know, here we have Ukraine, which is very eager to have international-justice mechanisms come into play and prosecute these international crimes that are being committed by Russia on its territory. But I think it’s important to acknowledge that we can overstate the degree to which this is brand new, and suddenly these crimes are being committed, because a lot of crimes have been committed in the last twenty or thirty years that haven’t elicited the same kind of response.
But what I do think that we see here is a moment when a lot of what we had begun to take for granted is—suddenly, we realize—incredibly important. And we need tools to be able to enforce these rules. We have kind of taken it for granted for the past few decades that we live in a world in which a state like Russia is not going to attack and try to absorb a state like Ukraine. You know, the U.N. Charter’s prohibition on the use of force has been pretty successful in preventing interstate wars—that is, preventing wars by states against other states. There have been lots of civil wars, and a lot of failed states, and there have been a number of fights within states, but there have not been as many wars between states. And this is a bit of a wake-up call. Because, if Russia can invade Ukraine, and bring the might of a major global power to bear on it and potentially absorb it, then all bets are off. The entire foundation of the international legal system that we’ve all come to assume we can count on is suddenly up for grabs, and no longer stable in the way we all assumed that it was.
And I think part of the reason you’re seeing this reaction of the international community to this moment is precisely that everybody realizes that their own safety and security is at risk if Ukraine falls. And they might be next. And I think that’s why you suddenly see states willing to take steps that, you know, until now they have been reluctant to take in terms of supporting investigations of international courts into war crimes, and sanctioning Russia for illegal actions, and basically every international legal tool has kind of been thrown at Russia. And I think that’s because they all see themselves at risk. And I think this has the possibility of reviving a system that’s been falling aside. That is the hopeful piece of this.
I do wonder if that’s more of a European reaction, though. The system that was created—that we’ve been operating under since the Second World War—was made at a time when Western powers had lots of colonies all around the world. Do you think countries elsewhere feel that that system was working, and that you couldn’t be invaded, and so on? I think you see this in some ways with who has and hasn’t gone along and supported sanctions.
I’d point to the fact that you had a hundred and forty states in the General Assembly vote to condemn Russian aggression, and only five states, including Russia, voting against the condemnation. So it isn’t just Western Europe that is condemning the actions of the Russians. It’s countries from all around the world. And I think they do see that this is a kind of fundamental threat to their existence. Some of them do point out that the system hasn’t been working perfectly well for them, either, for a long time. And you saw a number of African countries abstaining from the General Assembly resolution. And there are a number of possible reasons for that. But one of them may be this sort of sense of, like, “Oh, now you care about international law? You know, we’ve been suffering for some time.” And I think that’s a critique the international system needs to take incredibly seriously as we think about how we move on from here.
Isaac Chotiner is a staff writer at The New Yorker, where he is the principal contributor to Q. & A., a series of interviews with public figures in politics, media, books, business, technology, and more.
More:UkraineRussiaVladimir PutinJoe BidenVolodymyr ZelenskyGeneva ConventionsWar Crimes
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